Love is sometimes blind… Marriage and immigration

Jack’s brother, Romeo, called him last night in a crisis.  His new wife Julia, whom he met in Cuba two years ago and whom he married the week after she arrived in Canada two months ago, stormed out of their home last night wanting a separation.  Romeo explained that their marriage was rocky from day one.  It would appear that, after the marriage, Julia became a completely different person than the sweet, kind and amusing woman he had dated long distance for the past two years.  Romeo believed that, with time, they would be able to work things out.  However, he has since found out that Julia never loved him and manipulated him into marriage solely to immigrate to Canada. Having sponsored Julia to become a Canadian resident, Romeo now faces years of financial responsibility towards her even after a divorce.

Romeo’s story is unfortunately similar to that of many other Canadians, and the options available in those situations (until recently) were non-existent.  At the moment, when someone sponsors a non-Canadian to become a Canadian resident, that person must give financial support to their immigrating spouse for three years, even if the marriage or relationship fails. If the immigrating spouse uses social assistance to meet his or her basic needs, the Canadian spouse will have to repay the money to the government, as sponsorship is a legal contract with the Government of Canada. You must meet its terms. It does not matter whether or not a judge would deny the immigrating spouse financial assistance pursuant to Canadian family law principles or whether the parties had signed a marriage contract confirming that no spousal support would be payable in case of separation or divorce.  If the immigrating spouse requires financial assistance to meet his or her needs, the Canadian spouse is 100% responsible, not Canadian taxpayers. Until very recently, there was nothing a “manipulated” spouse could do in this unfortunate situation.

However, in October 2012, the Canadian immigration laws have changed.  In an ongoing effort to deter people from using marriages of convenience to enter into Canada, the Canadian immigration authorities introduced a new regulation that requires certain sponsored spouses to live in a legitimate relationship with their sponsor for at least two years from the day on which they receive their permanent resident status in Canada.  If the sponsored spouse leaves prior to the two year requirement, its status may be revoked.  Canadian authorities can also lay criminal charges against the sponsored spouse.

Based on this new regulation, Romeo will not have to prove that Julia manipulated and married him for the sole purpose of immigrating to Canada, given that she left prior to the two year requirement.  Her status as a permanent resident will be revoked and Romeo’s obligation to financially support her will end since she will have to return to Cuba.  If you are a Canadian citizen or permanent resident and have met someone from another country on the Internet or while travelling, think carefully before marrying them and sponsoring them to come to Canada. Otherwise, blind love could completely turn your world around…

I want my share in your business!

 

Jill’s sister has been living in a common-law relationship with her boyfriend for 11 years.  They have two children together, they own a home jointly and they have invested in a rental property through a company belonging to her boyfriend.  In all aspects (except for the very expensive wedding), they are like a married couple.  As of late, things have been rocky in their relationship and her sister has sought Jill’s guidance with regard to their rental property. She thought that since Jill is going through a separation herself, she would know the answer to her questions. However, Jill herself was married and she wonders if the same rules would apply to common law spouses.

 

The answer is NO. When it comes to property rights, things are very different for common law spouses than for married spouses. If you are married, Ontario laws very specifically set out how your family property is to be shared.  The rules are clear and will be strictly followed by lawyers and judges (unless you and your spouse agree to share your property differently).  However, this property division scheme does not apply to common law couples in Ontario.

 

It does not mean that non-married spouses have no legal remedies when it comes to property. To rectify what courts often saw as a terrible injustice, Canadian courts have created some legal principles which, if some conditions are established, allow common-law spouses to share in the value of a property owned by the other spouse following a separation. The main legal principle applied by Canadian courts to split assets between unmarried spouses is called “unjust enrichment”.

 

In simple terms, “unjust enrichment” may be established when one spouse made a contribution (financial or otherwise) towards the acquisition, maintenance or improvement of an asset (for instance a piece of property) which is owned by one spouse only, resulting in a financial benefit for the other party, to the first party’s detriment.  In the case of Jill’s sister, it would be profoundly unjust if she did not get to share in the value of the property held in her boyfriend’s company name given that they contributed an equal amount of money and efforts towards its purchase and maintenance.

 

This said, proving unjust enrichment can be quite a challenge sometimes, and the cost of making this claim before a court of law can be out of reach for many people.  For that reason, prevention is always better than cure, and many of the challenges associated with unjust enrichment claims can usually be avoided from the outset with careful family planning through cohabitation agreements and other legal contracts. For more information about this subject listen to our program:

 

«Protecting Your Finances: Marriage Contracts and Cohabitation Agreement (“prenupts”)»  http://www.familylawinabox.com/info/study_box.php